ORDER R. J. Kochar, J.
1. The petitioner is a co-operative society registered under the Maharashtra Co-operative Societies Act. 1960. It has employed four persons as watchmen and has been paying wages between the range of Rs. 770 to Rs. 880 per month. In addition to the four watchmen, there are two clerks employed by the society. The society has 200 members as the owners of the industrial units or Industrial galas. The society has several commercial premises wherein different kind of commercial or trading activities are carried on by the owners of the units. The society is registered as a commercial premises society. The society has nothing to do with the commercial or trading activities of its members. The society itself is not carrying on any commercial or trading activity. The society is aggrieved by the impugned judgment and order dated 25th September. 2000 given by the Industrial Court, Maharashtra at Mumbai in Complaint ULP No. 621 of 1995 filed by the respondent union and the concerned workmen making an allegation of unfair labour practice against the petitioner society that they are not getting wages in accordance with the Minimum Wages Act. According to the respondents by violating the provisions of the Minimum Wages Act, the society engaged in unfair labour practice within the meaning of Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971. Though the respondents had invoked item 6 of Schedule II of the Act, the Industrial Court has found that there was absolutely no substance in the allegations and there were no pleadings on that point- 1 also find that the main grievance of the respondents was failure on the part of the petitioner society to pay them the wages in accordance with the notification Issued by the State Government under the Minimum Wages Act, 1948 in relation to the employment in establishments or commercial establishments under Entry 17 of Part 1 of the Schedule to the Minimum Wages Act. 1948.
2. We have to bear in mind that the petitioner society is a separate independent and distinct entity and a legal and juristic personality independent of its members who are the share holders of the society owning the premises in their own right. The business, trade or commercial activities of the members cannot be mixed up with the activities of the society and by no stretch of imagination can it be said that the society is also carrying on the business, trade or commercial activities because its members are engaged in such activities, besides, it is neither pleaded nor proved, nor is there even a shred of evidence or material on record to conclude or even to infer that the society is engaged in any business, trade or commercial activities. The workmen have not led any evidence to prove that commercial activities were carried on by the society. There is a statement made in their evidence about the activities in the premises of the members but nothing about the society's activities. On the contrary the society's secretary has clearly stated that the society's work is of maintaining the society. Even in his cross-examination not even a whisper of activities of the society is put to him. No doubt a few questions were put to him about the commercial activities in the galas or the premises of the society owned by the members. The entire building is of industrial gaJas but that does not make the society itself a commercial establishment carrying on any trade, business or any commercial activities. It is clear that the society is a collective person of the members, who have organised themselves to maintain the society and to carry on its affairs in accordance with the bye-laws, rules and theAct. It isadistinct legal entity from the members. It collects the maintenance charges, service charges, property and water charges payable to the municipal corporation. It acts as a statutory agent to collectively represent the members. It looks after the maintenance of the building and renders services such as collecting the prescribed charges from the individual members and disburse or spend them in accordance with law for repairs, water charges, property taxes, payment of wages etc. and keeps proper accounts and get the accounts approved annually in its general meeting. There is no evidence or material to conclude or to infer what other activities are engaged in by the society. There is no pleading or proof to say that the society itself is carrying on the trade, business or a commercial activity such as sale or purchase of the premises or any goods or merchandise and it earns any income therefrom.
3. Let us now analyse the legal provisions. The claim of the employees forminimum wages is underthe Minimum Wages Act. Item 17of the Part 1 of the Schedule reads as under :-
"17 :- Employment in any shop or commercial establishment (not being an employment in any bank or an employment which is included) under any of the other entries in this Schedule.
Explanation.- For the purpose of this entry, the expressions, "Shop" and "Commercial Establishment" shall have the meaning respectively assigned to them in the Bombay Shops and Establishments Act, 1948."
The employees are claiming wages as prescribed for the commercial establishment under the Act and alleged failure to be an unfair labour practice under Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. The term "commercial establishment" has been defined under the Bombay Shops and Establishments Act in Section 2(4) which reads as under :-
'Commercial establishment' means an establishment which carried on, any business, trade or profession or any work in connection with, or incidential or ancillary to. any business, trade or profession [and includes establishment of any legal practitioner, medical practitioner, architect, engineer, accountant, tax consultant or any other technical or professional consultant and also includes) a society registered under the Societies Registration Act, 1860 [XXI of 1860) and a charitable or other trust, whether registered or not, which carries on (whether for purposes of gain or not) any business, trade or profession or work in connection with or incidental or ancillary thereto but does not include a factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment."
The concept of "commerce" or "commercial" is well known and has been the subject matter of empteen number of Judicial decisions and I need not dwell on that point. In my opinion based on the facts of the present case, the society cannot be said to be engaged in any commercial venture or a business, trade or profession. There is no investment of capital nor is there any motive for profit or gain. Its a simple activity confined to the maintenance of the premises and payment of different statutory dues to the prescribed authorities and to employ the services of some persons to carry out such activities. There is no commercial aim or purpose to engage in the activities of the society. It is possible that out of its total receipts from the members, the society might have excess amount over its expenditure but that is not the test to hold that these activities are commercial in nature to dub the society as a commercial establishment. There is neither an object of profit nor a risk of making loss in the maintenance activities of the society. I, therefore, hold that the petitioner society is neither "a commercial establishment" nor "an industry" to attract the provisions of the Minimum Wages Act, 1948. The society has therefore not engaged in an unfair labour practices as contemplated under Item 9 of the M.R.T.U. & P.U.L.P. Act. 1971. Shri A. D. Shetty. the learned Advocate for the respondents Union and the employees have relied upon the following judgments which I have not referred as the facts in the present case are totally different from the facts of the each of the said judgments:-
(i) Karmani Properties v. State of West Bengal.
(ii) Rasheed Maskati v. Abbas Hussaini.
(iii) Rasheed Maskati v. Abbas Hussaini,
(iv) Chandraman Upadhya v. Rajasthan CHS.
(v) Maharashtra General Kamgar Union v. Anand Kamal Co-op. Hsg. Society.
(vi) Narendra Fuladi v. State of Maharashtra.
(vit) Bangalore Water Supply v. A. Rajappa.
(viii) Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon.
(ix) Pralhad Pawar v. Managing Director.
(x) Rambhau Dhamange v. Kinkar CHS Ltd.
(xi) Maharashtra Co-op. Housing Finance Society Ltd. v. V. S. Loni.
(xii) D. B. Khade v. Ramsingh Jaisingh.
In the case of R. A. Maskati (supra) a learned Single Judge of this Court has held that a trust owning certain properties to be a commercial establishment to attract the provisions of the Minimum Wages Act. The Trust had employed various workmen to provide services to the tenants of the buildings, of watchmen, liftmen, sweepers etc. The trust as a landlord was collecting and earning rent from the tenants and therefore the activities of the trust were held to be an organised services rendered to the tenants who were paying rent to the trust which partook the character of commercial nature. In our case the society is not collecting any rent for itself as a gain or profit but is collecting the maintenance and other service charges and various taxes to be paid in turn to the municipal authorities on behalf of the members. The society can be said to be merely collecting and passing on the receipts from the members. There is no element or aim or object of earning profit or gain for itself as in the case of a landlord. The ratio of this judgment, therefore, would not apply to the facts of the present case. This judgment has been confirmed by our Division Bench in appeal but it is of no avail to the respondents.
The second judgment (Chandraman H. Upadhya) (supra) strongly relied on by Shri Shetty is also by another learned Single Judge of our High Court (H.H.Kantharia, J.). In this case the learned Judge has held the sociely to be a commercial eslablishmenl on the basis of the peculiar facts that in the bye-laws of the sociely its avowed object was "to carry on trade of building and buying, selling, hiring, lelting and developing land in accordance with the co-operative principles and to establish and carry on social, recreative and educational work in connection with its tenants and the society shall have full power to do all things it deems necessary for the accomplishment of all objects specified in its bye-laws or expedient including the powers to purchase, hold, sell, exchange, mortgage, rent, lease, sub-lease, surrender, accept surrenders of and deal with lands of any tenure and to sell by instalments and subject to any terms or conditions and to make and guarantee advances to members for building or purchasing property and to erect, pull down, repair, alter or otherwise deal with any building thereon.
4. In our case there is not even an iota of such activities to make it either an "industry" or "a commercial establishment". This judgment also does not assist the respondents in any way. In view of the above discussion the impugned judgment and order of the Industrial Court is quashed and set aside. Rule is made absolute in terms of prayer clauses (a) and (b) which are reproduced below :-
(a) The Hon'ble Court be pleased to issue writ of certiorari or any other appropriate writ in the nature of certiorari or any other appropriate writ order direction under Article 226 of the Constitution of India calling for the records and proceedings from the respondent No. 7 and after going through the same and after going through the legality and validity thereof to quash and set aside the impugned order/judgment dated 25.9.2000 (being Exhibit "F" hereto).
(b) That the Hon'ble Court may be pleased to declare that co-operative society in particular Kiran Industrial Premises Co-operative Society is not an establishment which can be called a commercial establishment under Shop & Establishment Act, 1948 and the Hon'ble Court may be pleased to declare thatneither the Bombay Shops & Establishment Act. 1948 nor the Minimum Wages Act, 1946 are applicable to the co-operative society registered under the M.C.S. Act. 1960.
5. It would be open for the respondents Union and the employees as submitted by Shri Jha, the learned Advocate for the petitioner society, to approach the appropriate authority under Section 91 of the M.C.S. Act. 1960.
6. The State Government shall consider the issue of such employees of co-operative societies and amend the relevant statutory provisions suitably forthwith as there are innumerable such societies which employ a large number of employees rendering services to their members, but which do not exactly fall in the category of the term "commercial establishment".
7. The Prothonotary and Senior Master is hereby directed to send a true copy of this judgment to the State Government for necessary legislative action in the matter.